The Wailing List – Volume 2 “Compromise”
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Despair Inc. presents
THE WAILING LIST ™ Volume 1, Issue 2
“Compromise”
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IN THIS ISSUE
1. CORPORATE SPIN
Facing International Outrage, Despair Inc. Founder Offers Apology, Compromise On Emoticon Ban
2. RECENTLY OVERHEARD
A selection of our favorite news coverage, email and voicemail
3. VALENTINE’S DAY SPECIAL
Despair announces dramatic discounts on “Dysfunction”lithographs, notecards and desktoppers just in time for Valentine’s Day
4) NEW PRODUCT ANNOUNCEMENT
Always on the cutting edge of interpersonal communications, Despair unveils a radical new product capable of the most concise communication of personal misery ever conceived
5) WAILING LIST EXCLUSIVE
Membership has its privileges. This time, we may have outdone ourselves with this absolutely unprecedented giveaway
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CORPORATE SPIN
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FACING INTERNATIONAL OUTRAGE, DESPAIR INC. FOUNDER OFFERS APOLOGY,
COMPROMISE ON EMOTICON BAN
FOR IMMEDIATE RELEASE
Contact: Media Relations
Email: media@despair.com
Web: www.despair.com
Fax: 214.826.1952
DALLAS, TX – February 5th, 2001 – Individuals across the globe have registered their outrage and despair at the recent announcement by Despair, Inc. that they had been awarded a registered trademark for the ‘frowny’ emoticon by the United States Patent and Trademark Office (USPTO) and that the company intended to sue anyone who used the trademarked symbol in email.
The firestorm of controversy even led to an entire newsthread discussing the lawsuit on the highly respected tech-news site Slashdot, which in turn inspired a subsequent story by the Gray Lady herself, The New York Times.
But the outrage wasn’t limited to the English speaking world. Newspapers and websites across the globe voiced all manner of bemusement, confusion, disdain and disgust over the trademark and lawsuit.
In the face of international public outcry, company founder and COO Dr. E.L. Kersten announced today that he was prepared to offer a compromise to the global Internet community — one that would allow for the continued legal use of the symbol in email.
Kersten explained both a change of heart and of policy in a press release:
Full article begins here:
http://www.despair.com/demotivators/acompromise.html
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RECENTLY OVERHEARD
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THE NEW YORK TIMES
Compressed Data: “Don’t Mind That Lawsuit, It’s Just a Joke”
January 29, 2001
by JOHN SCHWARTZ
Seven million Internet users could be in a heap of trouble over their use of an Internet icon, the frowny face.
That is the contention of Despair.com, a company in Dallas that has officially registered the symbol (trademark violation removed) as its trademark. Despair says it has filed a lawsuit against the millions of people who infringe the company’s intellectual property rights by typing the symbol in e-mail messages to denote sadness.
Full article below:
http://www.nytimes.com/2001/01/29/technology/29LOGO.html
(REGISTRATION REQUIRED)
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SLASHDOT
“Despair Suing 7,000,000 Email Users Over (trademark violation removed)”
Posted by CmdrTaco on Friday January 26, @02:24PM from the patenting-the-emoticon dept.
Calle Ballz writes “According to an article on Despair’s Website, they are suing 7,000,000 email users over trademark infringment for using the (trademark violation removed) ‘emoticon’. I can’t tell if it is a joke or not, I would like for it to be. The trademark registration is valid and is listed here.
Full article below:
http://slashdot.org/article.pl?sid=01/01/26/1525258&mode=thread
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HEISE ONLINE
“Verzweifeln verboten 
”
Meldung vom 30.01.2001 12:59
Wer seinem Unmut mit dem Emoticon (trademark violation removed) Luft macht, riskiert eine drakonische Strafe: Misset’ter m’ssen tausendmal von Hand schreiben: “(trademark violation removed) ist eingetragenes Warenzeichen der Despair, Inc.”.
Full article below.
http://www.heise.de/newsticker/data/hps-30.01.01-000/
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From: Isod@(removed)
To: feedback@despair.com
Subject: You so stupied, 
Date: Fri, 2 Feb 2001 10:28:59
hi despair,
so, so, now u have right about this (trademark violation removed) smily but u forgot somthing!!!!!
without hyphen (-) you can do nothing! pay so mutch for nothing and now find my!
HAHAHAHAHAHAHAHAHAHAHAHAHAHA
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From: “Dr. E.L. Kersten”
To: Isod@(removed)
Subject: Re: You so stupied,
Date: Fri, 2 Feb 2001 10:28:59
You got us there. I feel pretty stupied.
E.L.
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From: Gerard (removed) <(removed)@videotron.ca>
To: feedback@despair.com
Subject: (trademark violation removed)
Date: Tue, 9 Jan 2001 10:18:43
Bonjour!
DIs donc esp’ce de macaque, tu te prends pour un fou ??? Eh bien, c’est r’ussi!
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From: “Dr. E.L. Kersten”
To: Gerard (removed) <(removed)@videotron.ca>
Subject: Re: (trademark violation removed)
Date: Wed, 10 Jan 2001 08:02:32
Je suis en caoutchouc. Vous �tes colle. Celui qui vous disiez des rebonds hors fonction de moi et des b�tons � vous.
Au revoir,
E.L.
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From: Mark (removed) <(removed)@(removed).com>
To: media@despair.com
Subject: Frowny Face suit
Date: Mon, 29 Jan 2001 09:15:50
To whom it may concern,
If you have searched any of my mail, send me confirmation of that fact immediately. Under consumer protection laws, and the Freedom of Information Act, you are required to confirm or deny that
you have a record of searching my mail. My two addresses are (removed)@(removed).com and mark@(removed).
Failure to comply is punishable by law.
If you have searched any of my mail, you have illegally searched me and are in violation of civil rights laws.
Sincerely,
Mark (removed)
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From: “Dr. E.L. Kersten”
To: Mark (removed) <(removed)@(removed).com>
Subject: Re: Frowny Face suit
Date: Tue, 30 Jan 2001 11:34:23
Mr. (removed):
While we did not find either of your referenced email addresses in our list of 7,000,000 some odd citizens who have violated our trademark via email, we’ll take your panicked entreaty as a
confession of probable guilt and make sure to keep an eye on your future communications.
Attentively yours,
E.L. Kersten, Ph.D.
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From: “Ing. (removed)” <(removed)@htl-bulmegraz.ac.at>
To: media@despair.com
Subject:
Date: Wed, 31 Jan 2001 16:50:10
Why are you using letter, in the USA, they belong to us in Europe! Letters are the ownership of Europe. They are our good. They belong to our culture. You did not have develloped them, so why are you using them?
Create your own bloody letters, if ypou need them and stay away from our culture and our letters.
Use smoke signals, if you want.
We do not alowe you to use our letters, so give up writing, or we have to go bring you too court.
Who do you think you are!
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From: “Dr. E.L. Kersten”
To: “Ing. (removed)” <(removed)@htl-bulmegraz.ac.at>
Subject: Re:
Date: Thu, 01 Feb 2001 08:40:34
Smoke signals? Did you really say “use smoke signals”?
Dude, that ain’t cool.
E.L.
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From: (removed)@t-online.de
To: feedback@despair.com
Subject: what you want?
Date: Tue, 30 Jan 2001 21:34:28
you will war against all pcfreaks!?? do what you want, but think about!
we are millions. and if you make us to criminals, we destroy you! never do it! emoticons are for all not only for you! the clearvoyant!
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From: “Dr. E.L. Kersten”
To: (removed)@t-online.de
Subject: Re: what you want?
Date: Tue, 30 Jan 2001 23:22:45
I am at a loss to explain it, but there is something genuinely terrifying about your email.
Seriously. I don’t want any trouble… I promise if your name comes up on any Carnivore searches, we will not press charges against you. Just don’t ever write us again.
Please.
Edward.
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From: Paul (removed)
To: feedback@despair.com
Subject:
Date: Wed, 31 Jan 2001 14:40:27
Best site I’ve enjoyed in some time. I was alerted to it by a bulletin board discussion about the frowning emoticon lawsuit. Out of 31 posts, one person “got it.”
Thanks!
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From: “Dr. E.L. Kersten”
To: Paul (removed)
Subject: Re:
Date: Wed, 31 Jan 2001 19:01:47
No offense intended- but it may be time to start hanging around in smarter bulletin boards.
Regards,
E.L.
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Close Encounters of the Voicemail Kind
An anonymous Yankee scholar waxes eloquent via voicemail on the subjects of trademark law, publicity theory, competitive sports and the importance of being fondly regarded by others.
http://www.despair.com/lib/demotivators/closeencounter.wav
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VALENTINE’S DAY SPECIAL
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Valentine’s Day looms ominously on the horizon. For a select few, it will be a day of intoxicating celebration, with Cupid’s sweet romantic arrows penetrating the hearts of the beloved.
But for those whom Cupid finds without a love to call his or her own, it will be a day of trauma and grief. A day without end.
If you find yourself dreading Valentine’s Day, you’re not alone. And yet, you are alone. So very alone…
In the face of this time of crisis, Despair is there, adding insult to injury by offering an unprecedented $4.00 discount on all of our “Dysfunction” products.
That’s 25% off our “Dysfunction” Lithographs, DeskToppers and Notecard Packs.
What better way is there to comfort the lonely, embittered heart than with the gift of frank but useful advice?
Perfect for you OR for someone you love, especially if that special someone is one who doesn’t want to hurt your feelings but just doesn’t feel that way about you but still wants to be friends.
http://www.despair.com/dysfunction.html
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NEW PRODUCT ANNOUNCEMENT
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Always on the cutting edge of interpersonal communications, Despair unveils a radical new product capable of the most concise communication of personal misery ever conceived.
Introducing “Frownies(tm)”.
http://www.despair.com/frownies.html
“Classic” – “Literati” – “Angst”
3 unique models. 3 distinctive articulations of sorrow.
Available for a limited time – exclusively from Despair Inc.
(Subject to availability. Some models may not be in stock.)
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WAILING LIST EXCLUSIVE
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Membership with “The Wailing List” has its privileges. This time, we may outdone ourselves with this absolutely unprecedented giveaway!
Using a proprietary software mechanism, Despair has accomplished the unbelievable- we have actually been able to embed within this very document itself one fully-functional and legally-approved “Classic”-edition Frowny(tm).
Use of this amazing product must be in accordance with the terms and conditions expressed in the following End User License Agreement for the “Classic” Frowny(tm).
Do Not Fold, Bend, Mutilate or Spindle this agreement.
ELECTRONIC END USER LICENSE AGREEMENT FOR “CLASSIC” FROWNY(TM)
NOTICE: THIS IS A CONTRACT. BY READING THIS DOCUMENT YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. Please read this agreement carefully.
The following document contains Despair Inc.’s Official Registered Trademark, which combines a colon (“:”) with a hyphen (“-”) and an open-parenthesis (“(“) to create an ASC-II depiction of sadness, henceforth referred to as the “Frowny(tm)”. This document also includes related documentation. In return for acquiring a license to use the Frowny(tm) and its requisite documentation, you agree to the following terms and conditions:
1. Scope of Use. You may cut and paste the Frowny(tm) into one(1) and only one email, which may in turn be sent to one and only one recipient, who is restricted from further forwarding or otherwise duplicating this Frowny(tm). Neither you nor the one legal recipient of this Frowny(tm) may resize, recolor or otherwise modify this item upon receipt of it. Failure to comply with any of the aforementioned terms will be a violation of trademark law and will as well void any warranty for the accompanying Frowny(tm).
2. Proprietary Rights and Obligations. The structure and organization of the Frowny(tm) is the valuable property of Despair. You agree that no copies shall be made of the Frowny(tm), and that
your single use of the Frowny(tm) in email shall be accompanied by this unedited Electronic End User License Agreement. As well, you agree not to alter, reverse engineer or disassemble the Frowny(tm). Removal of any individual component of the Frowny(tm) is expressly forbidden and may result in a miscommunication of your demeanor to the recipient.
3. Assignment. You may assign your rights under this Agreement to a third party who agrees in writing to be bound by this Agreement prior to the assignment provided that you transfer the sole copy of the Frowny(tm) and this related documentation to the third party and provided that you have not used the Frowny(tm). Except as set forth above, you may not assign your rights under this Agreement.
4. No Other Rights. Title to and ownership of the Frowny(tm) and documentation and any reproductions thereof shall remain withDespair. Except as stated above, this Agreement does not grant you any right (whether by license, ownership or otherwise) in or to intellectual property with respect to the Frowny(tm).
5. Term. This license is effective until terminated. Despair has the right to terminate your license immediately if you fail to comply with any term of this Agreement. Upon any such termination you will destroy the original Frowny(tm) and its related documentation.
6. Use Restrictions. The use of the Frowny(tm) with any Instant Messaging Client, including America Online’s Instant Messenger, is expressly forbidden, as it may induce a permanent and
irreversible transmogrification of the Frowny(tm) into an icon which, while retaining some recognizable expression of sadness, is severely jaundiced and no longer protected by trademark rights extended to registration 75502288.
7. Warranty. DESPAIR MAKES NO WARRANTIES, EXPRESS, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO ANY MATTER WHATSOEVER. IN PARTICULAR, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS ARE EXPRESSLY EXCLUDED.
8. Limit of Liability. (a) IN NO EVENT WILL DESPAIR BE LIABLE TO YOU FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST PROFITS OR LOST SAVINGS, OR FOR ANY CLAIM BY ANY PARTY, EVEN IF A DESPAIR REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (b) Some states or provinces do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
9. Governing Law. This Agreement will be governed by the laws in force in the State of Texas excluding the application of its conflicts of laws rules. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. You agree that the Frowny(tm) will not be shipped, transferred or exported into any
country or used in any manner prohibited by the United States Export Administration Act.
10. Entire Agreement. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF YOUR AGREEMENT WITH DESPAIR WHICH SUPERSEDES ANY PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN DESPAIR AND YOU RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, AND YOUR OBLIGATIONS UNDER THIS AGREEMENT SHALL INURE TO THE BENEFIT OF YOUR LICENSORS WHOSE RIGHTS ARE LICENSED UNDER THIS AGREEMENT. NO VARIATION OF THE TERMS OF THIS AGREEMENT WILL BE ENFORCEABLE AGAINST DESPAIR UNLESS DESPAIR GIVES ITS EXPRESS CONSENT IN WRITING SIGNED BY AN OFFICER OF DESPAIR.
11. Government End Users. The Frowny(tm) and documentation are “Commercial Items,” as that term is defined at 48 C.F.R. 2.101, consisting of “Commercial Computer Artwork” and “Commercial Computer Artwork Documentation,” as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R. 22i7.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Artwork and Commercial Computer Artwork Documentation are being license to U.S. Government end users (A) only as Commercial Items and (B) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States. Despair Incorporated, 660 Preston Forest Center #153, Dallas, Texas, 75230-2718.
Despair and the Frowny(tm) are registered trademarks of Despair Incorporated.
Inquiries and comments about either the Frowny(tm) or this licensing agreement may be directed to feedback@despair.com.
Additional information about Despair may be obtained by visiting
http://www.despair.com.
End license agreement. Actual Frowny(tm) included below. Please refer
to the Frowny(tm) Owner’s Manual for instructions of proper use.
Copyright (c) 2001, Despair Inc.
TO UNSUBSCRIBE FROM THIS LIST
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Go to http://www.despair.com/subscribe.html.
But we’d advise against it.